Cyber Vigilance LTD - Terms and conditions
These Terms set out the basis upon which the Supplier will provide Equipment and/or Services (each as defined below).
By submitting an Offer or by accepting these Terms, the Client agrees to contract on the basis of these Terms and in doing so agrees that they prevail over any other terms which the Client may seek to impose or introduce, including (without limitation) any terms set out in or relating to any purchase order, acceptance or acknowledgement issued by the Client.
Any person submitting an Offer, or making any other representation, on behalf of the Client represents and warrants that they have the legal right and authority to bind the Client to the terms of the Agreement.
The Agreement supersedes all and any previous agreements in relation its subject matter, including (without limitation) any related non-disclosure agreements previously entered into by the parties.
1.1 The following definitions and rules of interpretation apply in the Agreement.
Acceptable Use Policy: the Supplier’s acceptable use policy, a copy of which is available on request.
Agreement: an agreement between the Client and the Supplier comprising: (i) these Terms, (ii) the Quotation, and (iii) the relevant Statement of Work.
Background IP: those Intellectual Property Rights owned by a party prior to the Agreement or which are created or produced at any time independently of the Agreement.
Bribery Laws: the Bribery Act 2010 and all other applicable UK legislation in relation to bribery and corruption.
Business Day: a day other than a Saturday, Sunday or public holiday in England.
Change Control Request: a document detailing the impact (including cost implications) of a requested change under clause 9, a pro-forma version of which is available from the Supplier.
Confidential Information: all and any confidential information (in whatever form) whether or not marked as such including but not limited to commercial, financial, marketing and technical information relating to the disclosing party’s business, services, products, Clients, consultants, employees, suppliers, finances, proprietary computer software, website, know how, trade secrets, intellectual property, future product plans, future project plans and documentation in any form or medium whatsoever whether disclosed orally or in writing relating to any of the foregoing (including copies thereof).
Client: the legal person (whether company, partnership, individual or otherwise) identified in the Quotation.
Client Data: data provided and/or supplied by the Client, or on the Client’s behalf, in connection with the Agreement.
Data Protection Legislation: means all applicable laws and regulations relating to the processing of personal data and privacy including the General Data Protection Regulation 2016/679 (GDPR), the Data Protection Act 2018 and any statutory instrument, order, rule or regulation made under those statutes, as from time to time amended, extended, re-enacted or consolidated. The terms ‘Data Controller’, ‘Data Processor’, ‘Process(ing)’, ‘Data Subjects’ and ‘Personal Data’ shall have the meaning given to them in the GDPR.
Data Protection Schedule: the schedule attached to or comprised in the SOW, setting out the scope, nature, purpose and duration of processing by the Supplier, types of Personal Data and categories of Data Subject.
Deliverable(s): any work, know-how, data, technical or business information, invention (whether patentable or not), design (whether registrable or otherwise), process, formula, software, copyright work or database, which is created, devised, developed or discovered by the Supplier during the provision of the Services either alone or with any other person;
Documentation: any documents provided by the Supplier, including (without limitation) technical documentation, operations manuals and specification(s).
Equipment: the equipment (or part thereof) described in a Quotation and/or further specified in the related Statement(s) of Work.
Equipment Specification: any specification for the Equipment agreed in writing by the Client and the Supplier.
Fees: the fees set out in the Quotation and/or any other fees or charges payable under the Agreement, including any fees and charges relating to Third Party Products.
Force Majeure Event: any of the events described in clause 20.
Intellectual Property Rights: all patents, rights to inventions, utility models, copyright and related rights, trade marks, service marks, trade, business and domain names, rights in trade dress or get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database right, topography rights, moral rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications for and renewals or extensions of such rights, and all similar or equivalent rights or forms of protection in any part of the world.
Microsoft Products: any and all products, software or other offerings provided by Microsoft.
Normal Business Hours: 8.30 am to 5.30 pm local UK time, each Business Day.
Offer: an offer made by the Client when it confirms acceptance (by any means, including by email) of a Quotation.
Payment Terms: Payment must be made by the purchaser within 30 days of the invoice date.
Project: the project described in the SOW.
Project Limitations: any limitations, contingencies, conditions or constraints relating to the Project, including any referred to in the SOW.
Project Milestone: a date by which a part of the Project is to be completed, as set out in the SOW.
Quotation: a quotation issued by the Supplier on these Terms.
Service Commencement Date: the date from which the Services will be provided, as set out in the Statement(s) of Work or as otherwise agreed by the parties.
Service Levels: the Supplier’s standard service levels in force from time to time relating to the provision of support, or such other terms as the Supplier may agree in writing
Services: the services described in a Quotation and/or further specified in the related Statement(s) of Work.
Statement of Work (SOW): a statement of work agreed by the parties.
Supplier: Cyber Vigilance Ltd, with registered company number 11630666 whose registered office is at 35 Station Approach, West Byfleet, Surrey, England, KT14 6NF
Support Services: such support services (if any) comprised in the Services, if described in a SOW.
Third Party Products: such third party products and/or software (if any), including any Microsoft Products, as the Client may request or require at any time and any specified in a Quotation or SOW.
Terms: these master terms for the supply of equipment and services.
Virus: any thing or device (including any software, code, file or programme) which may: prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any programme or data, including the reliability of any programme or data (whether by re-arranging, altering or erasing the programme or data in whole or part or otherwise); or adversely affect the user experience, including worms, trojan horses, viruses and other similar things or devices.
1.2 Clause, schedule and paragraph headings shall not affect the interpretation of the Agreement.
1.3 A ‘person’ includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
1.4 Words in the singular shall include the plural and vice versa.
1.5 A reference to ‘writing’ or ‘written’ includes e-mail.
1.6 Where the words ‘include(s)’, ‘including’ or ‘in particular’ are used in this Agreement, they are deemed to have the words ‘without limitation’ following them. Where the context permits, the words ‘other’ and ‘otherwise’ are illustrative and shall not limit the sense of the words preceding them.
1.7 Any obligation in this Agreement on a person not to do something includes an obligation not to agree, allow, permit or acquiesce in that thing being done.
2.1In response to a Client request for equipment or services, the Supplier shall issue a Quotation which shall be effective for a period of 20 Business Days from its date of issue. If not accepted within that time, the Quotation shall automatically lapse and be of no effect.
2.2 When the Client accepts a Quotation, it shall comprise an Offer for the purpose of these Terms. An Agreement shall be formed between the parties only when the Supplier accepts a Client Offer in writing (including by email) or by delivering Equipment and/or Services pursuant to that Offer. Each Agreement so formed comprises a separate and discrete contract between the parties.
2.3 Any samples, drawings, descriptive matter or advertising issued by the Supplier, and any descriptions or illustrations contained in the Supplier’s catalogues, brochures or proposals are issued or published for the sole purpose of giving an approximate idea of the goods or services described in them. They shall not form part of the Agreement.
3. Supply and delivery of equipment
3.1 The Equipment is described in the Quotation subject to any modifications set out in any applicable Equipment Specification. The Supplier reserves the right to amend the Equipment Specification if required by any applicable statutory or regulatory requirement, and the Supplier shall notify the Client in any such event.
3.2 The Supplier shall arrange delivery of the Equipment to the location set out in the Quotation or such other location as the parties may agree (Delivery Location). Delivery of the Equipment shall be complete when the Equipment is unloaded at the Delivery Location.
3.3 Any dates quoted for delivery of the Equipment are approximate only, and the time of delivery is not of the essence. The Supplier shall not be liable for any delay in delivery of the Equipment that is caused by a Force Majeure Event or the Client’s failure to provide adequate or accurate delivery or other instructions relevant to the supply or delivery of the Equipment.
3.4 If the Supplier fails to deliver the Equipment, its liability shall be limited to such reasonable additional costs and expenses as are incurred by the Client in obtaining replacement equipment of similar description and quality in the cheapest market available.
3.5 If the Client fails to take delivery of the Equipment within 3 Business Days of the Supplier notifying the Client that the Equipment is ready, then (i) delivery of the Equipment shall be deemed to have been completed at 9.00 am on the third Business Day following the day on which the Supplier notified the Client that the Equipment was ready; and (ii) the Supplier shall store the Equipment until delivery takes place, and may charge the Client for all related costs and expenses (including insurance).
3.6 If the Client has not taken delivery within ten Business Days after the day on which the Supplier notified the Client that the Equipment was ready for delivery, the Supplier may resell or otherwise dispose of part or all of the Equipment charge the Client for any shortfall below the price of the Equipment.
3.7 The Supplier may deliver the Equipment by instalments, which shall be invoiced and paid for separately. Each instalment shall constitute a separate contract. Any delay in delivery or defect in an instalment shall not entitle the Client to cancel any other instalment.
4. Quality of goods
4.1The Supplier warrants that on delivery the Equipment shall:
(a)conform with its description and any applicable Equipment Specification; and
(b)be free from material defects in design, material and workmanship.
4.2 Subject to clause 4.3, where Equipment does not meet the warranty in clause 4.1 the Supplier shall, at its option, repair or replace defective Equipment, or refund the price of defective Equipment in full if:
(a) the Client gives notice in writing that some or all of the Equipment does not comply with the warranty set out in clause 4.1, provided that (i) in the case of a defect that is apparent on normal visual inspection, notice is given within three Business Days of delivery, and (ii) in the case of a latent defect notice is given within a reasonable time of discovery of the latent defect;
(b) the Supplier is given a reasonable opportunity of examining such Equipment; and
(c) the Client (if asked to do so by the Supplier) returns such Equipment to the Supplier’s place of business.
4.3The Supplier shall not be liable for the Equipment’s failure to comply with the warranty in clause 4.1 if:
(a) the Client makes any further use of such Equipment after giving a notice in accordance with clause 4.2;
(b) the defect arises because the Client failed to follow oral or written instructions as to the storage, installation, commissioning, use or maintenance of the Equipment or (if there are none) good trade practice;
(c) the defect arises as a result of the Supplier following any drawing, design or Equipment Specification supplied by the Client;
(d) the Client alters or repairs such Equipment without the written consent of the Supplier;
(e) the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal working conditions; or
(f) the Equipment differs from its description as a result of changes made to ensure they comply with applicable statutory or regulatory standards.
4.4 The Client agrees and accepts that with respect to defects in Equipment arising other than under the warranty in clause 4.1, the Client’s exclusive remedies shall be under the terms of the applicable manufacturer’s guarantee.
4.5 Except as provided in this clause 4, the Supplier shall have no liability to the Client in respect of the Equipment’s failure to comply with the warranty set out in clause 4.1.
4.6 These Terms shall apply to any repaired or replacement Equipment supplied by the Supplier.
5. Title and risk
5.1 Risk in the Equipment shall pass to the Client on completion of delivery.
5.2 Title to the Equipment shall not pass to the Client until:
(a) the Supplier receives payment in full (in cash or cleared funds) for the Equipment and any other goods that the Supplier has supplied to the Client in respect of which payment has become due, in which case title to the Equipment shall pass at the time of payment of all such sums; or (if earlier)
(b) the Client resells the Equipment, in which case title to the Equipment shall pass to the Client at the time specified in clause 5.4.
5.3 Until title to the Equipment has passed to the Client, the Client shall:
(a) store the Equipment separately from all other goods held by the Client so that it remains readily identifiable as the Supplier’s property;
(b) not remove, deface or obscure any identifying mark or packaging on or relating to the Equipment;
(c) maintain the Equipment in satisfactory condition and keep it insured against all risks for its full price on the Supplier’s behalf from the date of delivery;
(d) notify the Supplier immediately if it becomes subject to any of the events listed in clause 19.1(c); and
(e) give the Supplier such information relating to the Equipment as the Supplier may require from time to time.
5.4Subject to clause 5.5, the Client may resell or use the Equipment in the ordinary course of its business (but not otherwise) before the Supplier receives payment for the Equipment. However, if the Client resells the Equipment before that time:
(a) it does so as principal and not as the Supplier’s agent; and
(b) title to the Equipment shall pass from the Supplier to the Client immediately before the time at which resale by the Client occurs.
5.5 If before title to the Equipment passes to the Client the Client becomes subject to any of the events listed in clause 19.1(c), then, without limiting any other right or remedy the Supplier may have:
(a) the Client’s right to resell Equipment or use it in the ordinary course of its business ceases immediately; and
(b) the Supplier may at any time require the Client to deliver up all Equipment in its possession that has not been resold, or irrevocably incorporated into another product and, if the Client fails to do so promptly, enter any premises of the Client or of any third party where the Equipment are stored in order to recover them.
6.1 In consideration of the Client’s compliance with the terms of the Agreement the Supplier shall, with effect from the Service Commencement Date:
(a) provide the Services with reasonable care, skill and ability;
(b) use reasonable endeavours to provide the Services, and (where relevant) the Deliverables to the Client, in all materials respects in accordance with the SOW, save that it is agreed that any dates for Supplier performance are provided for guidance only and time shall not be of the essence;
(c) provide suitably qualified and skilled individuals to provide all or any of the Services; and
(d) appoint a project manager who shall have authority to contractually bind the Supplier on all matters relating to the Project,
subject always to any Project Limitations.
6.2 The Supplier will use reasonable endeavours to ensure the continuity of the Services, including the continuity of the Supplier’s project manager and any personnel directly engaged in the Services, but shall have discretion to make changes where reasonably necessary in the interests of the Supplier’s business. Where such changes are necessary, the Supplier shall provide replacements of similar status and experience.
6.3 If the Services do not conform with clause 6.1, Supplier will, at its expense, use all reasonable commercial endeavours to correct any such non-conformance promptly, or provide the Client with an alternative means of accomplishing the desired performance. Such correction or substitution constitutes the Client’s exclusive remedy for any breach of clause 6.1. Notwithstanding the foregoing, the Supplier:
(a) does not warrant that the Services will be uninterrupted or error-free or that the Services will meet the Client’s requirements;
(b) is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and the Client acknowledges that the Services may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
6.4 Where Support Services are provided, they will be provided during Normal Business Hours in accordance with the Service Levels.
7. Third party products
7.2 The Supplier will provide reasonable assistance to the Client to enable it to establish the Third Party Contract but the Client accepts that the Supplier is not responsible for the Third Party Products, including any faults, deficiencies or other issues connected with those products, full responsibility for which rests exclusively with the relevant third party vendor.
7.3 The Client agrees and accepts that (i) the Supplier’s only responsibilities and obligations are those relating to the Equipment or Services, and (ii) the Supplier shall have no responsibility or liability under the Third Party Contract.
8. Charges and payment
8.1 The Client shall provide to the Supplier valid, up-to-date and complete payment details or approved purchase order information acceptable to the Supplier and any other required valid, up-to-date and complete contact and billing details.
8.2 The Supplier shall invoice the Client and the Client will pay all Fees, each in accordance with the Payment Terms. Where the Client provides payment details, the Supplier is hereby authorised to take payment upon issue of invoice.
8.3 The Supplier reserves the right to increase the price of the Equipment, by giving notice to the Client at any time before delivery, to reflect any increase in the cost of the Equipment to the Supplier that is due to:
(a) any factor beyond the control of the Supplier (including foreign exchange fluctuations, increases in taxes and duties, or increases in supplier costs, labour, materials and other manufacturing costs);
(b) any request by the Client to change the delivery date(s), quantities or types of Equipment ordered, or the Equipment Specification; or
(c) any delay caused by any instructions of the Client in respect of the Equipment or failure of the Client to give the Supplier adequate or accurate information or instructions in respect of the Equipment.
8.4 Where the Fees include any third party fees or costs, including any relating to Third Party Products, the Client agrees and accepts that the Supplier receives and pays those fees on behalf of the Client pursuant to clause 7 above, whereby the Client accepts full responsibility for the Third Party Contract, to which the Supplier is not a party.
8.5 The Supplier shall also be entitled to charge the Client for any approved expenses reasonably and properly incurred in connection with the Services. Such expenses will be invoiced monthly in arrears, including a breakdown of expenses payable in relation to the invoiced period.
8.6 All amounts and Fees stated or referred to in the Agreement:
(a) shall be payable in the currency stated in the SOW;
(b) are non-cancellable and non-refundable;
(c) are payable in full, net of all charges, and without set-off, deduction or withholding; and
(d) are exclusive of value added tax or other local taxes, which shall be added to the Supplier’s invoice(s) at the appropriate rate.
8.7 If the Supplier has not received payment of an invoice within 7 days after the due date, the Supplier shall have the right to suspend performance hereunder and shall be under no obligation to provide any or all of the Equipment or Services while the invoice(s) concerned remain unpaid. Any invoice disputes must be notified to the Supplier within 5 Business Days of receipt of invoice, failing which the invoice will be deemed accepted and any right of dispute waived.
Time & Materials
8.8 Where, or to the extent that, the Services are provided on a time-and-materials basis:
(a) the Fees payable shall be calculated in accordance with the Supplier’s standard daily fee rates in force from time to time, based on an eight-hour day worked during Normal Business Hours;
(b) where the Client requests the Supplier to carry out work outside the hours referred to in clause 8.8(a), the Supplier shall be entitled to charge at an overtime rate of (i) 150% of the normal rate for any time worked by members of the Project team on Saturdays or on Business Days outside the hours referred to in clause 8.8(a), and (ii) 200% of the normal rate for any time worked on Sundays or bank holidays;
(c) the Supplier shall invoice the Client monthly in arrears for its charges for time, expenses and materials (together with VAT where appropriate) for the month concerned, calculated as provided in this clause 8.
8.9 Where the Services are provided for a fixed price, the total price for the Services shall be the amount set out in the Quotation, further details of which may be set out in the SOW. Where staged payments have been agreed, the Fees are payable on the Supplier’s achievement of the corresponding Project Milestone. On achieving a Project Milestone, the Supplier shall invoice the Client for the charges that are then payable, together with expenses and the costs of materials (and VAT, where appropriate).
8.10 All fixed prices are based on the Supplier’s knowledge and understanding at the date the Fees are provided and in relation to the scope of the Project described in the SOW. Fees may be subject to upward revision in the event that the specification or scope of the Project exceeds that described in the Statement of Work or where the delivery of Services requires a greater workload or commitment than initially anticipated.
8.11 For the avoidance of doubt, any fixed price contained in the SOW excludes the cost of hotel, subsistence, travelling and any other ancillary expenses reasonably incurred by the Project team in connection with the Services, and the cost of any materials or services reasonably and properly provided by third parties required by the Supplier for the supply of the Services, which are chargeable in addition to the Fees.
8.12 Orders for bespoke Equipment, including any Equipment built or provided according to an Equipment Specification, are non-cancellable. Where the Client wishes to cancel an Order for any Equipment other than bespoke Equipment, the Supplier shall use reasonable endeavours to assist the Client in doing so, provided that the Client shall be responsible for any costs associated with cancellation, including re-stocking fees.
8.13 If any Services are cancelled or postponed by the Client, or its representative, prior to commencement the Client shall be responsible for (i) any third party fees or expenses incurred by the Supplier in connection with the Project which the Supplier, having made reasonable efforts, has been unable to defray, and (ii) the following cancellation charges:
(a) If notice of more than 7, but less than or equal to 14 Business Days is given before the scheduled start date, the cancellation charge will be 50% of the relevant Fees.
(b) If notice of 7 Business Days or less is given before the scheduled start date, the cancellation charge will be 100% of the relevant Fees.
For the avoidance of doubt, if notice of more than 14 Business Days is given before the scheduled start date, no charges shall apply under (a) or (b) above.
8.14 Once the Services have commenced, the Services may only be terminated in accordance with the Agreement.
9.1 The Supplier reserves the right to make changes to the Services and changes to software, technology or other aspects of the Services, including (without limitation) changes which are necessary to comply with applicable law or safety requirements or which do not materially adversely affect the nature or quality of the Services. The Client acknowledges and accepts that the Supplier may make the said changes, provided they do not materially adversely affect the Services.
9.2 Subject to clause 3.1 and clause 9.1, either party may request a change at any time during the term of the Agreement. Where the Client raises the request, it will promptly provide the Supplier with such information as the Supplier may reasonably require in connection with that request. The Supplier shall prepare a Change Control Request in respect of all change requests. A change will be effective only when the Change Control Request is agreed by the parties. The parties agree to act promptly and in good faith with respect to change requests and shall not unreasonably delay or withhold consent to the same.
9.3 Subject to clause 3.1 and clause 9.1, any changes to the Agreement shall require the written consent of the parties, not to be unreasonably withheld or delayed.
10. Client obligations
10.1The Client shall:
(a)ensure the terms of the Offer and any Statement of Work, including any Equipment Specification, are complete and accurate;
(b)provide the Supplier with:
(i)all necessary co-operation in relation to the Agreement; and
(ii)such documents, data, drawings, plans, diagrams, designs, reports, specifications or other information as the Supplier may reasonably require, including but not limited to Client Data, security access information and configuration services, and ensure all information is complete, true and accurate in all material respects;
(c)appoint a representative, who shall have the authority contractually to bind the Client on matters relating to the Agreement;
(d)make available such Client staff and applicable sub-contractors or suppliers (if any) as may be required for the Supplier to provide the Services and ensure that they co-operate fully with the Supplier in all material respects;
(e)carry out all Client responsibilities in a timely and efficient manner;
(f)comply fully with the requirements of any applicable Third Party Contract(s);
(g)obtain and maintain all Client licences, consents, and permissions necessary for the Supplier, its contractors and agents to perform their obligations under the Agreement;
(h)ensure that its network and systems comply with all applicable specifications;
(i)be solely responsible for (i) procuring and maintaining the network connections and/or telecommunications required in connection with the Services and/or the use of Third Party Products, and (ii) for any problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to the Client’s network connections or telecommunications links or caused by the internet; and
(j)comply with all applicable laws and regulations with respect to its activities under the Agreement.
10.2 The Client acknowledges that the Supplier’s ability to perform its obligations depends on the Client satisfactorily complying with the obligations stated in this Agreement and that should the Client delay or fail to perform any such obligations, including any breach or failure to comply with any Third Party Contract(s), the Supplier will not be liable for any delay, loss or damage, cost increase or other consequences arising from such delay, breach or other failure. The Supplier shall have no obligation to provide the Services in the event of misuse or incorrect use of the Third Party Products, breach of the terms of any Third Party Contract(s) or use of equipment or software not approved or designated for use with the Services or Third Party Products, or any fault in any such equipment or software and/or operator error.
10.3 The Client shall not access, store, distribute or transmit any Viruses, or breach the terms of the Supplier’s Acceptable Use Policy. The Supplier reserves the right, without liability and without prejudice to its other rights, to disable the Client’s access to any material that breaches the provisions of this clause 10. At or prior to the Service Commencement Date, the Client will confirm whether it has experienced any significant Virus issues in the previous 12 months and will provide the Supplier with all relevant details in relation to the same. The Client also undertakes to promptly notify the Supplier of any Virus issues it experiences during the term of the Agreement.
11. Client data
11.1 The Client shall own all right, title and interest in and to all of the Client Data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of the Client Data.
11.2 The Client warrants that it owns all rights in the Client Data and that the Supplier’s use and processing of the Client Data in accordance with the Agreement will not infringe third party rights. The Client hereby grants the Supplier the non-exclusive worldwide right and licence to process, copy, store, transmit display, print, view and otherwise use the Client Data to the extent required for the provision of the Services.
11.3 The Client (i) accepts full responsibility in respect of the security and backup of any and all Client Data and for the security and safety of its systems and software, and (ii) agrees to take regular data backups to protect against data loss, corruption or other damage. The Supplier’s liability in relation to any data loss, corruption or security will be limited to that resulting from its failure to comply with any written contractual commitments. Unless backup arrangements are agreed in writing and specifically comprised in the Services, the Supplier is not responsible for maintaining backup copies of any Client Data. The Client undertakes to make and retain a backup of any Client Data prior to providing the same to the Supplier.
12. Data protection
12.1 Both parties will comply with all applicable requirements of the Data Protection Legislation. This clause 12 is in addition to, and does not relieve, remove or replace, a party’s obligations under the Data Protection Legislation.
12.2 The parties acknowledge that:
(a) if the Supplier processes any Personal Data on the Client’s behalf when performing its obligations under the Agreement, it shall do so either as Data Processor for the purposes of the Data Protection Legislation or else as a sub-processor under Article 28(2) GDPR;
(b) the Data Protection Schedule describes the scope, nature and purpose of processing by the Supplier, duration of the processing, types of Personal Data and categories of Data Subject; and
(c) the Personal Data may be transferred or stored outside the EEA or the country where the Client is located in order to carry out the Services and the Supplier’s other obligations under the Agreement.
12.3 Without prejudice to the generality of clause 12.1, the Client will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the Personal Data to the Supplier for the duration and purposes of this Agreement so that the Supplier may lawfully use, process and transfer the Personal Data in accordance with this Agreement on the Client’s behalf. The Client hereby agrees to indemnify and hold the Supplier harmless from and against any and all liability, actions, claims, damages and other costs arising from or relating to any breach of the Client’s said obligations and/or any claim or action brought by any Data Subject(s), other than any claim resulting from the Supplier’s breach of the terms of the Agreement.
12.4 Without prejudice to the generality of clause 12.1, the Supplier shall, in relation to any Personal Data processed in connection with the performance by the Supplier of its obligations under this Agreement:
(a) process that Personal Data only on the written instructions of the Client unless the Supplier is required by the laws of any member of the European Union or by the laws of the European Union applicable to the Supplier to process Personal Data (Applicable Laws). Where the Supplier is relying on laws of a member of the European Union or European Union law as the basis for processing Personal Data, the Supplier shall promptly notify the Client of this before performing the processing required by the Applicable Laws unless those Applicable Laws prohibit the Supplier from so notifying the Client;
(b) ensure that it has in place appropriate technical and organisational measures, to protect against unauthorised or unlawful processing of Personal Data and against accidental loss or destruction of, or damage to, Personal Data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures (those measures may include, where appropriate, pseudonymising and encrypting Personal Data, ensuring confidentiality, integrity, availability and resilience of its systems and services, ensuring that availability of and access to Personal Data can be restored in a timely manner after an incident, and regularly assessing and evaluating the effectiveness of the technical and organisational measures adopted by it);
(c) not transfer any Personal Data outside of the EEA unless the following conditions are fulfilled:
(i) the Client or the Supplier has provided appropriate safeguards in relation to the transfer;
(ii) the Data Subject has enforceable rights and effective legal remedies;
(iii) the Supplier complies with its obligations under the Data Protection Legislation by providing an adequate level of protection to any Personal Data that is transferred; and
(iv) the Supplier complies with reasonable instructions notified to it in advance by the Client with respect to the processing of the Personal Data;
(d) assist the Client, at the Client’s cost, in responding to any request from a Data Subject and in ensuring compliance with its obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
(e) notify the Client without undue delay on becoming aware of a Personal Data breach;
(f) at the written direction of the Client, delete or return Personal Data and copies thereof to the Client on termination of the Agreement unless required by Applicable Law to store the Personal Data; and
(g) maintain complete and accurate records and information to demonstrate its compliance with this clause 12.
12.5 The Client hereby authorises the Supplier to appoint third-party processors of Personal Data under this Agreement. The Supplier confirms that it has entered or (as the case may be) will enter with the third-party processor into a written agreement incorporating terms which are substantially similar to those set out in this clause 12. As between the Client and the Supplier, the Supplier shall remain fully liable for all acts or omissions of any third-party processor appointed by it pursuant to this clause 12.
13.1 Each party shall comply with applicable Bribery Laws and use reasonable endeavours to ensure that:
(a) all of that party’s personnel:
(b) all of that party’s subcontractors; and
(c) all others associated with that party,
involved in performing obligations for or on behalf of that party or otherwise involved in this Agreement so comply.
13.2 Without limitation to clause 13.1 above:
(a) neither party shall (directly or indirectly) offer or give or request, agree to receive or accept any bribe, other improper payment or advantage or bribe any UK or foreign public official in breach of applicable Bribery Laws; and
(b) each party shall implement, maintain and enforce adequate procedures designed to prevent persons associated with that party engaging in conduct which contravenes the Bribery Act 2010.
13.3 Each party shall immediately notify the other as soon as it becomes aware of a breach of any of the requirements in the foregoing subclauses.
14. Proprietary rights
14.1 Each party shall own all rights in or relating to its Background IP and nothing in the Agreement shall be construed as transferring or assigning any rights therein. Each party hereby grants to the other party a non-exclusive, royalty free, worldwide right and licence to use its Background IP to the extent reasonably required for the performance of the other party’s obligations under the Agreement.
14.2 The Client acknowledges and agrees that the Supplier and/or its licensors own all Intellectual Property Rights in or relating to the Deliverables. The Supplier hereby grants the Client a non-exclusive, royalty free, worldwide right and licence to use the Deliverables to the extent agreed by the parties, including any purposes or uses set out in the SOW, or, failing agreement, to the extent reasonably required in connection with the operation of the Client’s business. The said right is personal to the Client and may not be assigned or sub-licensed to any third party without the prior consent of the Supplier. If the Supplier terminates the Contract under clause 19.1, the said licence will automatically terminate.
15.1 Each party may be given access to Confidential Information from the other party in order to perform its obligations under the Agreement. A party’s Confidential Information shall not be deemed to include information that:
(a) is or becomes publicly known other than through any act or omission of the receiving party;
(b) was in the other party’s lawful possession before the disclosure;
(c) is lawfully disclosed to the receiving party by a third party without restriction on disclosure;
(d) is independently developed by the receiving party, which independent development can be shown by written evidence; or
(e) is required to be disclosed by law, by any court of competent jurisdiction or by any regulatory or administrative body.
15.2 Each party shall hold the other’s Confidential Information in confidence and, unless required by law, not make the other’s Confidential Information available to any third party, or use the other’s Confidential Information for any purpose other than the implementation of the Agreement.
15.3 Each party shall take all reasonable steps to ensure that the other’s Confidential Information to which it has access is not disclosed or distributed by its employees or agents in violation of the terms of the Agreement.
15.4 Neither party shall be responsible for any loss, destruction, alteration or disclosure of Confidential Information caused by any third party.
15.5 The Client acknowledges that the Documentation and information relating to the Services constitute the Supplier’s Confidential Information. The Supplier acknowledges that the Client Data is the Confidential Information of the Client.
15.6 No party shall make, or permit any person to make, any public announcement concerning the Agreement without the prior written consent of the other parties (such consent not to be unreasonably withheld or delayed), except as required by law, any governmental or regulatory authority (including, without limitation, any relevant securities exchange), any court or other authority of competent jurisdiction.
15.7 This clause 15 shall survive termination of the Agreement, however arising.
16. Account security
16.1 The Client is responsible for setting up its account with the Supplier and will ensure that all information provided is true, accurate, up to date and not misleading in any respect. The Client shall keep the account information updated on an ongoing basis.
16.2 The Client will keep all account information, including username(s) and passwords(s) (together, Account Details), secure and strictly confidential and will employ reasonable security processes in that respect. The Client is responsible for all activities and/or transactions carried out using the Account Details, whether authorised by the Client or otherwise, including any related charges or expenses. The said account is for the Client’s use only and the Client undertakes not to authorise or permit anyone else to use its account and not to transfer or assign it to anyone else. The Client agrees to notify the Supplier immediately if it becomes aware of any unauthorised use of its account or the Account Details. The Client agrees that the Supplier is not responsible for any errors or failures in payment arising from incorrect payment or bank details provided by the Client.
17. Limitation of liability
17.1 This clause 17 sets out the entire financial liability of the Supplier (including any liability for the acts or omissions of its employees, officers, agents and sub-contractors) to the Client:
(a) arising under or in connection with the Agreement;
(b) in respect of the Equipment, the Services, the Deliverables and/or Documentation or any part of them, including any use of the aforesaid made by the Client; and
(c) in respect of any representation, statement or tortious act or omission (including negligence) arising under or in connection with the Agreement.
17.2 The Client agrees and accepts that the Supplier’s exclusive liability shall be in relation to the Equipment and the Services and that the Supplier shall have no liability in respect of the Third Party Products or pursuant to the Third Party Contract.
17.3 Except as expressly and specifically provided in the Agreement:
(a) the Client assumes sole responsibility for results obtained from the use of the Equipment, Services, Deliverables and/or Documentation and for conclusions drawn from such use. The Supplier shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to the Supplier by the Client, or any actions taken by the Supplier at the Client’s direction; and
(b) all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by applicable law, excluded from the Agreement, including any implied term(s) as to satisfactory quality or fitness for purpose.
17.4 Nothing in the Agreement excludes the liability of the Supplier:
(a) for death or personal injury caused by the Supplier’s negligence;
(b) for fraud or fraudulent misrepresentation; or
(c) for any other liability which may not be excluded or limited under applicable law.
17.5 Subject to clause 17.4:
(a) the Supplier shall not be liable whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation, restitution or otherwise for (i) any loss of profits, loss of business, depletion of goodwill and/or similar losses or loss or corruption of data or information, or pure economic loss, in each case whether direct or indirect, or (ii) any special, indirect or consequential loss, costs, damages, charges or expenses however arising under the Agreement; and
(b) the Supplier’s total aggregate liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of the Agreement shall be limited to 125% of the Fees paid or payable by the Client under the Agreement during the 12 months immediately preceding the date on which the claim arose.
18.1 Without prejudice to any other right, power or remedy and without liability, the Supplier reserves the right to limit or suspend the provision of Equipment or Services:
(a) if it is reasonably necessary to protect the interests of the Client or the Supplier, or the interests of any third party (including other Clients) and/or to protect the security or operation of the Supplier’s systems or network or those of its customers;
(b) if the Client breaches any of the terms of the Agreement or the Supplier reasonably believes the Client has breached or is about to breach;
(c) if the Client fails to pay any Fees when due;
(d) if the Client fails to cooperate regarding any suspected or actual breach of the terms of the Agreement; or
(e) if required to do so by law or further to a request from any regulatory or governmental authority.
18.2 The Supplier may also temporarily suspend all or any part of the Services for the purpose of repair, maintenance or improvement of any systems. The Supplier shall use all reasonable endeavours to keep any such suspensions to a minimum and to carry out such works outside normal working hours wherever possible.
18.3 The Supplier shall not be liable for any suspension of the Services under the above circumstances and the Client shall not be entitled to any setoff, discount, refund or other credit as a result of such suspension and/or disconnection and the Client agrees that any such downtime will be exempt from measurement under the Service Levels.
19.1 Without affecting any other right or remedy available to it, either party may terminate the Agreement with immediate effect by giving written notice to the other party if:
(a) the other party fails to pay any amount on the due date for payment and remains in default not less than 7 days after being notified in writing to make such payment;
(b) the other party commits a material breach of any other term of the Agreement which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 14 days after being notified in writing to do so;
(c) the other party is or may be (in the reasonable opinion of the first party) unable to pay its debts or has a receiver, administrator, administrative receiver or liquidator or similar appointed or calls a meeting of its creditors or ceases for any other reason to carry on business.
19.2 On termination of the Agreement for any reason:
(a) all rights, entitlements , permissions and licences granted under the Agreement shall immediately terminate;
(b) the Client shall return and make no further use of any equipment, property, Documentation and other items (and all copies of them) belonging to the Supplier; and
(c) any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the Agreement which existed at or before the date of termination shall not be affected or prejudiced.
19.3 If, upon termination of this Agreement, the Client wishes to transition to another service provider, the Supplier undertakes to provide such assistance and support as the Client may reasonably require to effect a smooth transition to the replacement provider, subject to payment of the Supplier’s reasonable fees and expenses in connection with the said assistance and support.
20. Force majeure
The Supplier shall have no liability to the Client under the Agreement if it is prevented from or delayed in performing its obligations under the Agreement, or from carrying on its business, by acts, events, omissions or accidents beyond its reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes (whether involving the workforce of the Supplier or any other party), failure of a utility service or transport or telecommunications network, act of God, war, riot, civil commotion, malicious damage, pandemic, epidemic, disease, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or sub-contractors, provided that the Client is notified of such an event and its expected duration.
If there is an inconsistency between any of the provisions of the Agreement, the Terms shall prevail over the Quotation and the Statement of Work unless the parties specifically agree otherwise in writing.
No variation of the Agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
No failure or delay by a party to exercise any right or remedy provided under the Agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
24. Rights and remedies
Except as expressly provided in the Agreement, the rights and remedies provided under the Agreement are in addition to, and not exclusive of, any rights or remedies provided by law.
25.1 If any provision (or part of a provision) of the Agreement is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force.
25.2 If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, the provision shall apply with whatever modification is necessary to give effect to the commercial intention of the parties.
26. Entire agreement
26.1 The Agreement, and any documents referred to in it, constitute the whole agreement between the parties and supersede any previous arrangement, understanding or agreement between them relating to the subject matter they cover, including (without limitation) any non-disclosure agreements previously entered into by the parties relating to the subject matter hereunder.
26.2 Each of the parties acknowledges and agrees that in entering into the Agreement it does not rely on any undertaking, promise, assurance, statement, representation, warranty or understanding (whether in writing or not) of any person (whether party to the Agreement or not) relating to the subject matter of the Agreement, other than as expressly set out in the Agreement.
27.1 The Client shall not, without the prior written consent of the Supplier, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under the Agreement.
27.2 The Supplier may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under the Agreement.
28. No partnership or agency
Each party confirms it is acting on its own behalf and not for the benefit of any other person. Nothing in the Agreement is intended to or shall operate to create a partnership between the parties, or authorise either party to act as agent for the other, and neither party shall have the authority to act in the name or on behalf of or otherwise to bind the other in any way (including, but not limited to, the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).
29. Third party rights
The Agreement does not confer any rights on any person or party (other than the parties to the Agreement and, where applicable, their successors and permitted assigns) pursuant to the Contracts (Rights of Third Parties) Act 1999.
30.1 Any notice required to be given under the Agreement shall be in writing and shall be delivered by hand or sent by pre-paid first-class post or recorded delivery post to the other party at its address set out in the Agreement, or such other address as may have been notified by that party for such purposes.
30.2 A notice delivered by hand shall be deemed to have been received when delivered (or if delivery is not in business hours, at 9 am on the first business day following delivery). A correctly addressed notice sent by pre-paid first-class post or recorded delivery post shall be deemed to have been received at the time at which it would have been delivered in the normal course of post.
31. Governing law
The Agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales.
Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with the Agreement or its subject matter or formation (including non-contractual disputes or claims).